BENEFIT OF CLERGY.
Engrossed as the profession is today with the agitation for the
betterment of our remedial procedure, it will sometimes prove profitable
to turn aside from the progress of our twentieth century procedure and
entering the musty lumber-room of the law, brush aside the cob-webs
and take a cursory view of some of the pleas that occupied the time of
courts and lawyers of past centuries. Nothing is calculated to encourage
more respect for the modern procedure of American and English courts,
than reading the history of some of the unequal and unjust privileges
and exemptions which obtained in the administration of the English law,
until a comparatively recent date. The contrast is indeed striking, when
we turn from the just ideals of equality and justice that characterize
the remedial procedure of our day, to contemplate some of the customs
and pleas that were followed and enforced by our own courts, before the
evolution of our civilization had made the present ideals possible.
There is no doubt but that the English common law is the outgrowth of
the most enlightened system of jurisprudence that the world has ever
seen, for it represents the best thought of the brightest minds of
civilization’s most progressive people. Its rules and doctrines were
formed, however, during the middle ages, and although it was generally
consistent with the scholastic methods of thought that dominated the
thinking world of that period and for the most part, it was in thorough
accord with proper and just ideals, yet, at the same time, the general
doctrines and principles were applied along with many of the unequal
proceedings and special pleas and privileges existing in favor of the
higher classes and together with the extremely technical standards, that
frequently were nothing but mere fantastic quibbles.
The benefit of clergy is an illustration of the engraftment upon this
enlightened system of jurisprudence, of one of the old special privileges
of a favored class, who, as an incident and high prerogative of their
office, claimed exemption from punishment for crimes. Of course such
an exemption of a favored class was inconsistent with the object of
distributive justice, to visit equal punishment upon all alike who are
similarly situated and with the elevation of the standards of justice and
equality, the plea was finally abolished by the legislative and judicial
branches of Government in England and the United States.
The benefit of clergy, or _privilegium clericale_, was the exemption of
the clergy from all responsibility to the temporal courts and laws from
the punishment imposed for various criminal offenses. Originally the
persons of clergymen alone were held to be exempt from criminal process
before a secular judge, but the privilege was later extended by the law
to all who could read, as all such were held to be _clerica_, or clerks.
For many centuries this plea was an important part of the criminal
procedure of the continental countries of Europe and still furnishes a
curious and instructive part of the history of the laws of England.
The privilege had its origin in a claim made by the ecclesiastics,
at a very early period, for the entire exemption of their order from
the jurisdiction of the common law courts of England. The growth and
development of the privilege is an interesting chapter in the history
of the controversy between the secular and spiritual power, during the
middle ages and the limitation or expansion of the authority of the State
or the Church, over matters temporal, depended largely upon the public
sentiment that shaped the policies of the government and the weakness or
strength of the individuals holding the reigns of government.
Benefit of clergy was the immediate outgrowth of conditions contributing
to the growth of the English common law. Before the Norman conquest and
afterwards, for many centuries, the clergy took a very active part in
the legislation and judicial branches of government and they shaped the
policies of the government, in many important respects. The educated
class belonged to this profession and we owe it largely to them that
the Anglo-Saxon law has left us any evidences at all. During the Saxon
period of superstition and ignorance, the ecclesiastical power had the
ascendency, but it gradually declined, as intellect and education became
the common property of the masses. Bishops were then the principal
members of the courts of law and they instructed the judges in both the
spiritual and secular laws and the respective limits upon each.[1] The
question of ecclesiastical or lay jurisdiction gave rise to the most
intense jealousies and contests between sovereigns and archbishops and
lawyers, but the superior learning of the clergy resulted in a gradual
encroachment by the Church upon the powers of the State.[2] During the
reign of Henry II., the jurisdiction of the king’s court over criminal
clerks was the subject of a memorable quarrel, between king Henry and
Thomas a’ Becket.[3] Boniface, Archbishop of Canterbury, as the successor
of Becket, waged a continuous fight, during the reign of Henry III., to
establish and enlarge the power of the Church, over matters secular, when
clerks or churchmen were brought before the secular courts. He ordained,
under the authority of a convocation, in 1261, that archbishops, bishops
and other inferior churchmen should ignore the letters of the king,
calling them for trial before secular courts,[4] and before this, in
1253, with other bishops, he pronounced a sentence of excommunication
against all those who had violated similar provisions of the canonical
laws, while enforcing secular power.[5]
In this civilized age, it seems strange that the Church would so dominate
the State, since the State must have consented to such a power, or it
could not have existed; but the Church, in this superstitious period
of mankind, held the terror of excommunication over the heads of the
temporal authorities and the State was thus coerced into the gradual
consent to the domination of the spiritual authorities. The Church always
claimed exclusive jurisdiction over all spiritual offenses, and as it
held the unfettered power of excommunication, even though its degrees
were opposed to secular laws, those around whom the Church threw its
protecting arms were really held to be above and beyond the power of the
secular courts.
The power of the Church was based upon a theory of Divine Right and it
was claimed to be far nobler than that of the State, because, whereas,
the power of the Pope extended to the soul, itself, the power of Princes
was limited to the body alone. The power of the Church, being thus _jure
divino_, ought to have been limited, at all times, to matters spiritual,
but by a gradual encroachment and by compact with the powers of the
State, the Church also assumed to exercise authority over bodies by the
aid of the State. But notwithstanding the firmness with which the clergy
claimed the exemption from all secular interference for the persons of
clerks, and the general indulgence that the laity gave to this claim,
confirmed, as it was by solemn declarations and acts of Parliament, the
privilege was always viewed with more or less jealousy and considered
as a usurpation that was generously tolerated rather than as a part and
parcel of the established common law of England.[6]
Under the terms of the canonical decree, “No power was given to laymen
to judge God’s anointed,”[7] because laymen, instead of possessing
power to command, were under the Divine injunction to obey the Church
and Churchmen. The clergy was not without a notable precedent for this
position, for it was recorded that king Alfred had a judge hanged who had
executed a clerk, because as a secular judge, he must have known that he
had no power over clerks.[8]
Churchmen also found many Bible references as authority for the
privilege. In King David’s psalm of praise, he cautioned his subjects:
“Be ye mindful always of his covenant, and the word which he
commanded to a thousand generations;
Even of the covenant which he made with Abraham and of his oath
unto Isaac;
And hath confirmed the same to Jacob for a law, and to Israel
for an everlasting covenant:
He suffered no man to do them wrong; yea, he reproved kings for
their sakes,
Saying, _Touch not mine anointed, and do my prophets no
harm_.”[9]
One guilty of the crime of high treason was not entitled to clergy
and the exemption was not granted to those convicted of ordinary
misdemeanors.[10] A clergyman was exempted from capital punishment
_toties quoties_, as often as he repeated the same offense; for a second,
although it might be a wholly different offense, he was hanged. But of
the laity, peers and peeresses were discharged for the first offense,
without reading, while commoners, of the male sex, who could read,
were branded in the hand and women commoners were held not entitled to
clergy.[11] Nuns, however, were held entitled to their clergy, at an
early day, the same as the monks and other churchmen, but the privilege,
in contemplation of the law, enured for the benefit of the church and not
for the nun.[12]
As the privilege was enforced in more recent times, after conviction and
any time before the execution of the sentence, when the clerk claimed his
clergy, a priest or ordinary would present him with a “psalter,” and if
he could read his “neck-verse,” he was burned in the hand and discharged.
The first verse of the 51’ Psalm was the verse most generally read to
test the learning of the prisoner and this verse was therefore called a
“neck-verse,” because it decided the fate of the person claiming clergy,
and the neck of the unfortunate called upon to read this verse depended
upon his ability to read it.[13] The rule of law governing the ordained
clerk was that he could not be tried in the lay courts at all, but only
in an ecclesiastical court and his punishment was governed entirely by
that court. In Bracton’s time, even before conviction in the secular
court, the clerk was delivered when demanded by the bishop’s court.[14]
But before the end of the reign of Henry III. the accused was not
delivered until after his conviction.[15]
In the time of Edward III., the recognition and enjoyment of the benefit
of clergy, depended entirely upon the ordinary demanding the felon as a
clerk from the secular authorities.[16] In the reign of Edward IV., if
the ordinary refused a man his clergy, where he was able to read, the
cause was certified to the King’s Bench, and the ordinary was fined,
on the theory that he was only a minister of the secular court and not
a judge in the cause.[17] And during the same reign, if the ordinary
granted clergy to a felon who could not read, the ordinary was fined and
the convict hanged and the secular courts assumed the right to judge of
the ability of the prisoner to read, for they made the record, “_quod
legit ut clericus, ideo tradator ordinario_” and if the ordinary granted
clergy to one who could not read, or refused it to one qualified, he was
fined.
But the qualification as to reading was not strictly applied at this
period, for if the prisoner could spell and thus put syllables together,
he was held, by Fortescue, to be entitled to his clergy. Littleton said
that if the clerk refused generally to read, he was denied his clergy;
but if a cause were stated which could not be allowed by the law of
the land, as where he had not the _tonsura clericalis_ or _ornamentum
clericale_, if clergy were refused, the ordinary was fined and enjoined
to receive the felon.[18]
During the reign of Edward IV. the prisoner claimed his clergy, upon his
arraignment, but this was deemed prejudicial to the prisoner, for he
thus had no challenges and was denied the right to a trial on the merits
and even if innocent of the crime, if he could not read, was hanged,
and his estate was forfeited. Sir John Priscott, Chief Justice of the
Common Pleas Court, during the reign of Henry VI. changed the practice
and when the felon claimed his clergy, on arraignment, he was required
to plead to the merits and then, if convicted, the crown took his estate
by forfeiture and he was then allowed his clergy. This practice served
the double purpose of giving the prisoner the benefit of a trial on the
merits and giving the crown a chance at his estate, which the other
practice denied to the crown and hence, it was afterwards generally
followed.[19]
It was customary to keep a register of clerks-convict and persons
attainted, so that such persons might not have their privilege more than
once.[20]
The burning in the hand, which was a necessary part of the procedure
of the privilege of clergy, was not ordained by the statute (IV. Henry
VII.) as a punishment, but merely to enable the court, on a subsequent
arraignment of the offender, to ascertain if the defendant had been
accorded his clergy. By statute, during the reign of Elizabeth (18
Elizabeth), it was enacted that the prisoner should not be delivered
until he had been burned in the hand, and in Biggen’s case, near the end
of the reign of Queen Elizabeth, it was decided, notwithstanding the
statute referred to, that the Queen could pardon the burning in the hand,
but unless she had done so, the prisoner could not be discharged until
he had been burned in the hand, and must remain perpetually in prison.[21]
The case of one Stone, originating during the fourth year of the reign
of Queen Elizabeth, is interesting as showing the effect of clergy upon
crimes committed preceding the granting of clergy to the criminal. Stone
had committed two felonies in one day, one of which was clergyable and
the other not. He was first indicted upon the crime which was clergyable
and being found guilty, was admitted to clergy and the judgment was
recorded. Having been adjudged guilty at a subsequent session upon the
non-clergyable felony, the conviction on the clergyable offense was
set up in bar and was held to be good, by a divided court, seven of
the thirteen deciding that since he had been once placed in jeopardy,
it should not be presumed that the felony for which clergy was not
admissible was committed before the other and _in favorem vitae_, the
most merciful side should be taken and though the felony upon which he
was convicted last was committed after the other one, yet since the felon
had suffered judgment upon the former conviction, as a clerk convict, he
should not be arraigned upon the second indictment, because the effect
of the discharge on the conviction was to acquit him of all felonies
committed before the conviction, as he should have been arraigned for
all his offenses before his clergy was allowed and the court would be
presumed to have had them in mind, as this was the duty of the court,
and the effect of his clergy was to discharge him of all preceding
felonies.[22]
The judgment of the court, in Stone’s case, as to the effect of clergy
upon a preceding crime, was followed in an early North Carolina case,[23]
where the court held that if the defendant claimed clergy for an offense
committed before clergy was granted to him, this claim should be urged
the same as a pardon, when the prisoner was brought up for judgment on
the latter conviction.
The distinction between “clergyable” and “unclergyable” crimes was not
so clearly defined during the thirteenth century, as at a later period.
At this time the benefit of clergy was but the privilege of “ordained
clerks” and the legislation of king John’s reign shows that the exemption
was slowly and by degrees ordained as not applicable to the crime of
high treason.[24] While the exemption to the clerks of the twelfth
century was much broader than later, during the thirteenth century clerks
could be tried for all minor offenses and in Bracton’s day clerks were
answerable to civil process the same as the laity.[25] The clergy had so
far established the exemption of their persons from corporal pains, that
during the reign of Henry III. it was enacted that a clerk, taken for the
death of a man, or for any other crime, if demanded by the ordinary, was
to be immediately delivered, without inquisition, to the court Christian,
to make canonical purgation and to establish his innocence or stand
convicted.[26]
During the reign of Edward I., the practice established during the reign
of Henry III., that a clerk, convicted of felony, could be delivered to
the ordinary, was recognized by act of Parliament (Statute Westminster),
and this statute recited this privilege and simply admonished the
prelates not to liberate those so delivered to them, without putting
them to their canonical purgation.[27] In the 25’ year of Edward III.
the clergy complained to Parliament that a certain knight, entitled to
clergy, had been hanged and quartered, on a judgment of treason and that
a priest had been hanged for killing his master. These complaints led to
the enactment of the statute _De Clero_ (25 Edward III. st. 3) by the
terms of which it was provided that henceforth all manner of clerks, as
well secular as religious, convicted before any secular justice, for
treason or felony, touching other persons than the king himself or his
royal majesty, should freely have and enjoy the privilege of the holy
church and should, without any impeachment or delay, be delivered to the
ordinary demanding them.[28]
During the reign of Henry VII. (7 Henry VII., c. 1), the benefit of
clergy was taken away from persons convicted of desertion while under
enlistment as soldiers of the crown and the privilege was likewise taken
away from those convicted of petit treason. The exemption of the clergy
from punishment for crimes was given a most decided set-back by the
statute 4’ Henry VIII., c. 2, which provided that:
“All persons committing murder or felony, in any church,
chapel, or hallowed place; or who, of malice prepens, rob or
murder any person in the king’s highway, or rob or murder any
person in his house, the owner or dweller of the house, his
wife, child or servant being then therein, and put in fear or
dread, shall not be admitted to clergy.”
This statute contained no exception of those actually engaged in the
holy orders and this led to the most determined resistence on the part
of the clergy of the kingdom.[29] Henry VIII. stood firm, however, and
during the same reign another statute was passed (23 Henry VIII., c.
1), taking away the benefit of clergy from persons convicted of petit
treason, wilful, malicious murder, robbery, wilful burning of a dwelling
house, or barn, where grain or corn was stored, and the like privilege
was denied to the abettors, helpers, maintainers or counselors of such
felons, except only such as were within the holy orders. It was also made
a felony, without clergy, for a clerk convict to break prison and escape,
and this was a serious blow to the exemption, for though the lives of the
clergy were spared, after conviction of the offenses named, yet they were
to be condemned to imprisonment and even to death, if the ordinary so
directed.[30]
By 27 Henry VIII., c. 17, clergy was also taken away from servants who
embezzled their master’s goods or property, and by 28 Henry VIII., c. 1,
persons under holy orders were to be judged the same as those not under
holy orders, so that real clerks were subjected to capital punishment for
felony, the same as nominal clerks.[31] During the same reign, by statute
33 Henry VIII., c. 1 to 14, clergy was denied to persons practicing
witchcraft or enchantment and to those making prophesies upon coates
of arms, badges, etc.[32] Before the reign of Elizabeth, the granting
or recording clergy had been reduced to a mere formality, but by 18’
Elizabeth, it was provided that the temporal courts should not deliver
the prisoner, until he had been burned in the hand.[33]
Benefit of clergy was not abolished, in England, until the year 1825,
when, by statute, 7 George IV., c. 28, sec. 6, this ancient privilege of
the middle ages was abolished, in that country.
In the United States, by Act of Congress, April 30’, 1790, it was
provided that the benefit of clergy should not be allowed upon conviction
for any crime where, by statute, the punishment was death. In North
Carolina, in 1816, the punishment by burning in the hand was abrogated,
and, in Kentucky, the benefit of clergy was abolished, by statute, in
1847.[34]
The celebrated case of Doctor Horsey, Chancellor to the Bishop of London,
who, during the reign of Henry VIII., was prosecuted and adjudged guilty
of the murder of John Hunne, is one of the most interesting that has
come to the writer’s attention. On account of the well known position
of Doctor Standish, as an advocate of the temporal power, the clergy
concluded not to wait upon the procedure of the temporal courts, in
Doctor Horsey’s case, but they caused a charge of heresy to be lodged
against Doctor Standish, because of his advocacy of the power of the
temporal courts over the persons and punishment of clerks. The clergy
and the justices of the King’s Courts had a notable dispute concerning
the power of the temporal courts over the persons of clerks, the clergy
contending that the benefit of clergy was established by the express
command of Jesus Christ, in the words, _nolite tangere Christos meos_,
while the temporal justices argued that these were the words of King
David, not of the Saviour at all, and that the “anointed,” referred to
the believers, to distinguish them from the unbelievers, then abroad in
Palestine. Those who had proceeded against Doctor Standish were adjudged
guilty of a _praemunire_, when Cardinal Wolsey threw himself at the
king’s feet and beseeched him to withhold his decision until the Pope
could be heard from. King Henry, however, decided that the arguments of
the supporters of Doctor Standish had not been answered by the clergy and
concluded with all of his accustomed firmness:
“By the order and sufferance of God, we are king of England;
and the kings of England who have gone before us never had
any superior but God alone; and, therefore, know that we will
maintain the right of our crown and temporal jurisdiction, as
well in this point as in others, in as ample a manner as our
predecessors have done before us.”[35]
This decisive stand of the King concluded the agitation concerning the
conflict of authority over the case of Doctor Horsey. Doctor Standish
was discharged from the charge of heresy. Doctor Horsey was so far
rescued from temporal power, however, that he enjoyed the free custody
of the house of the Archbishop of Canterbury, until the popular clamor
had subsided, when he was privately surrendered to the court of King’s
Bench and having entered a plea of not guilty, it was confessed and the
defendant was discharged.[36]
Although the clergy thus failed to convince Henry VIII. of the true
foundation of its power, in the case of Doctor Standish, it lost none
of its authority against the temporal courts, in the case of Doctor
Horsey, but its jurisdiction and the benefit of clergy was practically
conceded by the judges of the king’s court and the privilege continued
to be recognized until the 23’ year of this king’s reign, when he waged
war against the whole papal authority and passed an act taking away the
benefit of clergy from murder and robbery, in certain cases.[37]
One of the most distinguished men known to have been accorded the benefit
of clergy, in England, was the gifted Ben Jonson, the friend of “gentle
Shakespeare” and the scholarly Lord Bacon. He was arraigned at the Old
Bailey, in October, 1598, for the manslaughter of Gabriel Spencer, in a
duel. The indictment charged that the defendant, at Shordiche, had,
“with a certain sword of iron and steel called a rapiour, of
the price of 3s., which he then and there had in his right
hand and held drawn, feloniously and wilfully struck the same
Gabriel then and there with the aforesaid sword, giving to the
same Gabriel Spencer, in and upon the same Gabriel’s right side
a mortal wound, of the depth of six inches and of the bredth
of one inch, of which mortal wound the same Gabriel then and
there died instantly.”[38]
The record in this same case further shows that the prisoner when
arraigned,
“Confessed the indictment, asked for the book, read like a
clerk, was marked with the letter T, and delivered according to
the form of the statute,”
which meant that the author of “Every Man in His Humor” had claimed and
been accorded the benefit of clergy; that he had been branded on the left
thumb with a T, generally known as the Tyburn T, and discharged.[39]
The benefit of clergy was set up and recognized in many criminal cases
in the United States, during the Colonial period and the great patriot,
James Otis, successfully urged the exemption in favor of Massachusetts
soldiers, convicted of murder for their participation in the Boston
massacre.[40] The Federal Court decided, in the year 1817, in the case
of United States vs. Lambert,[41] that a person convicted of bigamy,
in Alexandria, was entitled to clergy, and, if able to read, should be
burned in the hand and recognized for good subsequent behaviour. In the
year 1830, the Federal Court held, in the case of United States vs.
Jernegan[42] that on a conviction for bigamy, in granting the benefit of
clergy, it was discretionary with the trial court to dispense with the
burning in the hand.
In the year 1806 the Supreme Court of North Carolina held that females
could claim the benefit of clergy, the same as males.[43] The Legislature
of North Carolina, having, in 1816 passed a statute abolishing the
punishment of “burning in the hand” for clergyable felonies, the Supreme
Court of that state, construing this statute, in 1825, in the case of
State vs. Yeater,[44] held that corporal punishment and imprisonment
could not both be inflicted upon a person found guilty of the crime of
manslaughter.
In 1837, however, in the same state the same court held that one found
guilty of manslaughter could be burned in the hand and also imprisoned
for one year. And in the year 1855, the Supreme Court of North Carolina
held that when a new felony was created by statute, the privilege of
clergy was an incident thereto, unless it was expressly taken away by
the statute creating the offense.[45] And in State vs. Carroll,[46] the
same court held that when the defendant prayed the benefit of clergy, for
a clergyable offense, if the State objected because the defendant had
before had clergy, this objection must be set up by a plea in writing.
In State vs. Sutcliff,[47] decided in South Carolina, in 1855, a
defendant, convicted of burning a dwelling house, was held entitled to
the benefit of clergy, and in the same state, the same year, another
person convicted of arson in the nighttime, was held entitled to
clergy.[48]
In Indiana, in 1820, and in Minnesota, in 1859, the Supreme Courts of
those states held that the benefit of clergy did not and never had
existed in those commonwealths,[49] and in the year 1787 the Supreme
Court of Virginia held that the crime of arson was not a clergyable
offense in the courts of that state.[50] But in the same state, in 1795,
two persons were convicted for stealing a horse, in 1793, and before
the _sentence of death_ was pronounced, they both prayed the benefit of
clergy and the Supreme Court held that they were entitled to clergy.[51]
One of the last cases where clergy was recognized, in the United States,
was in a Kentucky case.[52] A negro was convicted of rape upon a white
woman, after a trial had before Judge Buckner, in Bonner County, at
Glasgow. Under the statute, the punishment to be assessed was death and
the judge believed the defendant innocent of the crime for which he had
been convicted. The defendant’s counsel claimed the benefit of clergy
for him and the defendant was found able to read the Constitution of the
United States and he was accordingly burned in the hand and discharged.
These instances are not nearly all that could be found in England or the
United States to illustrate the application of this exemption from crime,
at common law, but the random cases mentioned will show the general
recognition of the privilege until comparatively recent times.
There is no doubt but what the benefit of clergy bred much crime
and operated, for centuries, as a great impediment in the impartial
enforcement of the criminal laws of England and the United States. Like
the right of sanctuary, established by the early Saxon kings, the benefit
of clergy owed its existence to the fact that the law’s redress of wrongs
was, at an early period in the history of the world, inadequate to
protect the educated class from the ambition and cupidity of the race and
in the dangerous games for place and power then waged, these privileges
were very dear to Englishmen and on the whole, were strictly respected.
Judged by modern standards, the exemption of the clergy, enlarged to
include all those who could read, from the punishment that others,
similarly situated, were subjected to, who were not so fortunate as to
be able to read, seems an anomaly in the administration of any system
of justice; but it must be accepted as a mere incident of the barbarous
period when the privilege was applied.
As a doctrine of the common law, it illustrates the fallibility of
all institutions of man, both in and out of the holy orders. The
privilege had neither justice nor reason for its foundation, but, like
the practice of witchcraft, enchantment and the belief in ghosts, so
prevalent during the same period, it owed its existence to the ignorance
and superstition of that civilization. Because of such an unjust practice
the common law is not to be condemned, any more than is the literature
of the same period of English history, because of the introduction of
ghosts, witchcraft and enchantment, into the literary masterpieces of the
past centuries, for these beliefs were prevalent at that time.
The Benefit of Clergy was an institution of the “myriads who, before us,
pass’d the door of darkness through.” No doubt some of our institutions
and procedure, to the jurists of succeeding ages, that come and go, “upon
this chequer-board of nights and days,” will seem equally as unjust and
ridiculous as this institution of the past now appears to us. We should
congratulate ourselves, that with our own liberal constitution, founded
upon a more exact idea of distributive justice, we are able to “grasp
this sorry scheme of things,” which existed until the present century.
But that this institution continued until the past century, ought to
prevent our entire satisfaction with our own procedure, and urge us to
the improvement of our present laws.
FOOTNOTES:
[1] Bracton, Ch. XII., fol. 409.
[2] Glanville, lib. V. c. VIII., IX.
[3] Maitland, Henry II. and Criminous Clerks, E. H. B. vii 224; I.
Pollock and Maitland’s History Eng. Law, p. 447.
[4] II. Reeve’s History English Law, p. 341.
[5] Bracton, De Legibus, lib. V. c. XI., XII.; II. Reeve’s History
English Law, p. 344.
[6] III. Reeve’s History English Law, p. 196.
[7] Decret, lib., 1, tit. 10; III. Reeve’s History English Law, p. 348.
[8] Mirror, c. V.
[9] 1 Chronicles, XVI. 15, 22; Also, 1 Kings, XXVI. 9; 2 Kings, I. 16.
[10] 1 Chitty, Criminal Law, 667, 668; 1 Bishop’s Criminal Law, Secs.
622, 624; 4 Bl. Comm. ch. 28.
[11] Bouvier’s Dictionary, tit. Benefit of Clergy.
[12] II. Hale’s Pleas of Crown, 328, 371; I. Pollock and Maitland’s
History English Law, p. 445. By a curious combination of terms, some of
the old cases refer to the exemptions women in pregnancy enjoyed in the
law, as “Clergy of the belly.”
[13] Webster’s New Int. Dict; Murray’s English Dict., “Neck-verse.”
[14] Bracton f, 123b; I. Pollock and Maitland’s History English Law, p.
442.
[15] Coke, 2 Inst. 164.
[16] III. Reeve’s History English Law, pp. 197, 198.
[17] IV. Reeve’s History English Law, p. 59.
[18] 9 Edward IV. 28.
Kelying reports a case, where at the Lent Assizes, for Winchester, the
clerk appointed by the bishop to give clergy for the prisoners, charged
with larceny, delivered the book to the prisoner and the prisoner did
not look at the book at all, but when asked, “_legit_ or _non-legit_,”
the clerk replied “_legit_.” The court then bid the clerk of assizes not
to record that the prisoner read, and fined the bishop’s clerk for so
finding. (18 Car. II.)
[19] Littleton, 2 Inst. 164; IV. Reeve’s History English Law, p. 60.
[20] IV. Reeve’s History English Law, p. 466.
[21] 5 Eliz. Dyer, 50; V. Reeve’s History English Law, p. 346.
[22] V. Reeve’s History English Law, p. 345.
[23] State vs. Carroll, 27 N. C. (5 Ired.) 139.
[24] II. Pollock and Maitland’s History English Law, p. 501.
[25] Bracton, f. 401b; I. Pollock and Maitland’s History English Law, p.
130.
[26] II. Reeve’s History English Law, pp. 421, 422.
[27] II. Reeve’s History English Law, p. 573.
[28] III. Reeve’s History English Law, p. 197.
[29] IV. Reeve’s History English Law, pp. 458, 463.
[30] IV. Reeve’s History English Law, p. 466.
[31] IV. Reeve’s History English Law, p. 468.
[32] IV. Reeve’s History English Law, p. 468.
[33] V. Reeve’s History English Law, p. 346.
[34] American Com. Kentucky, p. 407.
[35] IV. Reeve’s History English Law, pp. 458, 462; Keilw. 180b, to 185b.
[36] Keilw. 180b, to 185b; IV. Reeve’s History English Law, pp. 458, 462.
[37] IV. Reeve’s History English Law, p. 463.
[38] This original old musty indictment was recently unearthed at the old
Sessions House, in London, by a representative of the London Globe and
was delivered to the Council of Middlesex county for preservation.
[39] It is reported that the wily Ben really bribed the jailer to use
cold steel in branding him, as no marks were found on his hand after his
death. (London Globe, April, 1910.)
[40] American Commonwealth, Massachusetts; Knapp’s “Sketches of Eminent
Lawyers,” etc.
[41] 2 Cranch, C. C. 137.
[42] 4 Cranch, C. C. 118.
[43] State vs. Gray, 5 No. Car. (1 Murph.) 147.
[44] 11 No. Car. 4 Hawks. 187. And see, also, State vs. Kearney, 8 No.
Car. 1 Hawks. 53.
[45] State vs. Bosse, 8 Rich. Law. 276.
[46] 24 No. Car. 2 Ired. 257.
[47] Suab. 372.
[48] State vs. Bosse, 8 Rich. Law. 276.
[49] Fuller vs. State. 1 Blatchf. 63; State vs. Bilansky, 3 Minn. 246; 1
Gil. 169.
[50] Commonwealth vs. Posey, 4 Coll. 109; 2 Am. Dec. 560.
[51] Commonwealth vs. Stewart, 1 Va. Cas. 114.
[52] American Com. Ky. p. 407. Ch. 21.
That Thackeray was thoroughly familiar with the law governing the Benefit
of Clergy and the nature of the punishment inflicted on the culprit
pleading guilty of an offense clergyable at common law, is evidenced by
his presentation of the plea in favor of Lord Mohun, the Earl of Warwick,
Col. Westbury and Henry Esmond, in his interesting plot, in “Henry
Esmond.”